The Forensic Medicine Institute is a state institution under the Ministry of Justice. The purpose of the Forensic Medicine Institute is to collect and evaluate data from criminal events, whether at the scene or presented to it, and to present the results as evidence that the law can use in the service of justice. Although the concept of “autopsy” is commonly associated with the Forensic Medicine Institute, it also plays a role in cases that have not resulted in death, assisting in the fair resolution of legal processes in our judicial system. In short, it involves detecting facts on the human body related to a criminal event and identifying evidence. This process is of particular importance in Criminal Law and Health Law. In terms of Criminal Law, the Forensic Medicine Institute has gained significant importance in Health Law today.

Health Law is a branch of law that regulates and generates the legal relationship between a patient and a doctor, aiming to prevent and resolve legal disputes arising from this relationship. It can generally be defined as the intersection of medical and legal topics. In modern law, doctors and other healthcare professionals perform their work within the concept of “permitted risk.” A doctor can only be held responsible for the outcome of treatment if they are negligent. According to the World Medical Association’s declaration at its 44th General Assembly in 1992, malpractice (medical errors) is defined as “harm resulting from a doctor failing to follow the standard procedures during treatment, lack of skill, or failure to treat the patient”; it is emphasized that situations where the harm was not caused by the doctor’s fault (complications) should be distinguished. For legal responsibility to be established for a doctor’s actions, the following conditions must be met: the doctor’s act must be unlawful, harm must have occurred, the harm must be caused by the doctor’s fault, and there must be a causal link between the act and the result.

In health-related cases, expert witness reports must be obtained. This is regulated by the Civil Procedure Code, Article 293, as follows:

“Parties may obtain a scientific opinion from an expert on the subject matter of the case. No additional time can be requested solely for this reason. The judge may, upon request or sua sponte, decide that the expert witness should be invited to be heard. Both the judge and the parties may ask the expert witness questions at the hearing. If the expert witness fails to appear at the hearing without valid excuse, the report prepared by them may not be considered by the court.”

The role of the Forensic Medicine Institute in health-related cases is that of an expert witness, particularly in malpractice cases where compensation is sought. In these cases, considering that a doctor is legally liable even for the slightest fault, the expert witness report becomes crucial. In general, local courts request reports from the Forensic Medicine Institute and typically base their decisions on the findings of the Institute. For example, some recent decisions by the 13th Civil Chamber of the Court of Cassation include:

In the report of the 2nd Specialization Board of the Forensic Medicine Institute, it was stated that “the condition that developed after the surgery is a complication, which, although rare, can occur after such surgeries, and is not caused by any medical fault or negligence.” (Court of Cassation (13th Civil Chamber), 2016/29225 E., 2020/1847 K., 11.02.2020 T.)
In the report of the 2nd Specialization Board of the Forensic Medicine Institute, it was stated that “the medical interventions performed were in accordance with medical standards, and it was known that situations could occur that affect the systemic findings of the patient, which could not be foreseen or prevented, making the condition a complication.” (Court of Cassation (13th Civil Chamber), 2016/18168 E., 2019/11331 K., 14.11.2019 T.)
These reports primarily deal with complications rather than malpractice. Complications are situations where the doctor’s fault is absent in health-related cases. Malpractice, on the other hand, occurs when the patient suffers harm due to the doctor’s fault. The above reports are related to complications. However, these reports were not convincing for the Court of Cassation’s 13th Civil Chamber and were overturned in favor of the plaintiff on the grounds of “insufficient examination.”

The Court of Cassation (13th Civil Chamber) distinguishes between malpractice and complications in expert reports. According to this distinction, in malpractice cases, the expert witness must:

Examine whether the doctor showed the necessary diligence in the choice of treatment and during the treatment stages.
State what the required treatment should have been.
Explain what treatment was actually provided by the doctor.
Provide detailed and reasoned explanations that lead to a conclusion.
Simply stating what was done is not sufficient in malpractice cases. Also, according to the Court of Cassation (13th Civil Chamber), the expert report must include:

Whether care was shown,
What the required treatment was versus what was actually done,
Whether the required treatment and the one performed match, and the conclusions should be supported by all available evidence.
Recent decisions by the Court of Cassation (13th Civil Chamber) regarding “Complication Management” include:

The expert report did not sufficiently explain whether the infection in the patient was diagnosed in time, and if so, whether necessary treatment was promptly started. (Court of Cassation (13th Civil Chamber), 2015/40782 E., 2018/5451 K., 09.05.2018 T.)
In the expert reports considered in the decision, it was stated that the complication arising from a major surgery should be regarded as a complication, but the report did not discuss whether the defendant performed the necessary treatment for this situation. (Court of Cassation (13th Civil Chamber), 2015/39447 E., 2018/4718 K., 18.04.2018 T.)
The plaintiff complained that, even after being discharged and continuing to experience symptoms, they had to go to the hospital for a dressing change for 11 days, but the cause of the problem was not identified in the expert report, and the adequacy of the follow-up and treatment was not addressed. (Court of Cassation (13th Civil Chamber), 2015/43151 E., 2017/5449 K., 03.05.2017 T.)
The expert report must also address what steps the defendant doctor should have taken to prevent risks, whether the situation was identified during surgery, and whether prompt intervention occurred to mitigate harm. (Court of Cassation (13th Civil Chamber), 2015/41606 E., 2017/4295 K., 12.04.2017 T.)
The European Court of Human Rights (ECHR) and the Constitutional Court have criticized the use of general reports regarding complications in similar cases, emphasizing the need for individualized consideration. (Court of Cassation (13th Civil Chamber), 2016/10764 E., 2019/9910 K., 15.10.2019 T.)

Additionally, in health-related cases, the Forensic Medicine Institute’s report does not carry finality and can be appealed. In many cases, if the report is in favor of the defendant, it is considered “insufficient” by the Court of Cassation, and the case is overturned in favor of the plaintiff. Therefore, the court is not bound by the Forensic Medicine Institute’s report, and the decision can be appealed.

In conclusion, based on the information provided, the Forensic Medicine Institute acts as an expert witness in health-related cases. In our judicial system, decisions are often made based on the expert report. However, as seen in the Court of Cassation’s decisions, Forensic Medicine reports can sometimes be deemed insufficient or irrelevant to the case at hand. In malpractice cases, decisions may be made based on the conclusion that the harm was due to a complication, which absolves the defendant of fault. As a result, while expert reports from the Forensic Medicine Institute are essential in health-related cases, it is crucial that these reports are prepared appropriately and comprehensively, considering all the arguments, evidence, and responsibilities of the parties involved. The report should not only state what medical procedure was performed, but also evaluate the adequacy of the procedure and whether the doctor’s actions involved negligence or fault.

Av. Şefik ZİROĞLU & Stj. Av. Elif ÇAMLICA